case, design review remains more controversial and unsettled in the courts. Before exploring the courts’ opinions on design review, though, it is worth understanding why cities have adopted such regulations.
Why Do Cities Use Design Review? The embrace of design review is a direct result of changing social opinions about cities and built environments, often as a reactionary push against large-scale urban renewal projects and modernist architecture. Punter, in his review of design guidelines in American cities, identifies several motivations for design regulations. Among these are “…dissatisfactions with modernist architecture and planning…with corporate franchise design and standardised building forms…[and] perhaps deeper dissatisfactions with the loss of local landmarks…the fake, the pastiche, the facadist, the gentrified and the ‘themed’ landscapes,” all of which have served, he argues, to obliterate local identity and sense of place in many communities( Punter 1998, 3). Places, in other words, have become more placeless in the modern world—a Wal-Mart in suburban Philadelphia or suburban Houston or rural Ohio, for example, exhibits the essential characteristics of a Wal-Mart, and not of Philadelphia, Houston, or rural Ohio. A similar effect has occurred in suburban housing development, where one housing type—the detached, single-family dwelling—has ruled to such an extent that suburbs are often visually indistinguishable from each other. Communities, Punter argues, have therefore sought, “...regulatory frameworks that can help retain local character, make the most of existing assets in the built and natural environments, and create developments that are safe, attractive and user-friendly” (Punter 1998, 3). Similarly, Sheer finds that the most common goals enunciated by design regulations include improving the quality of life, preserving and enhancing a unique place, maintaining or upgrading a place to keep it safe and viable, and providing for compatible or unified development (Scheer 2006, 492). In many of these objectives one can hear the echoes of the “public health, safety, morals, or general welfare,” rationale that provides the crucial legal basis for the separation of land uses though zoning. (272 U.S. 365, 1926). It is important, before wading into the particulars of the legal issues that arise in design
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Lack of adequate design review can lead to inappropriate neighboring development—as seen with large skyscrapers dwarfing Philadelphia’s historic Independence Hall.
Before Zoning: Invalidity of Aesthetics Before the landmark court ruling on zoning in Euclid v. Ambler Realty, explained below, a case before the New Jersey Court of Errors and Appeals invalidated a statue which had imposed setback The Constitutionality and height restrictions on signs (Mandelker of Design Review 2005, 855). In the case, City of Passaic v. Paterson While many modern courts view aesthetic Bill Posting Co., the court ruled that, “It is obvious goals as a sufficient basis in themselves to allow for regulatory land use controls, this acceptance of that the effect of the ordinance is to deprive the landowner of the ordinary use for a lawful design review lags behind the courts’ acceptance business purpose a portion of his land” (72 of traditional zoning and subdivision regulations N.J.L. 285 1905, 285-286). The sign ordinance (Mandelker 2005, 855). Mandelker notes that restrictions included a mandatory 10-foot setback the legal acceptance of the use of aesthetics as a for all signs, plus a maximum height restriction regulatory purpose has evolved in three major of eight feet above ground level, which the court stages: first, most courts in the early 1900s held that aesthetic regulations had no legal basis; later, said was not “reasonably necessary for the public safety,” and therefore was an invalid taking of courts began to recognize that aesthetics could private property without just compensation from serve as a supporting basis for regulation when the municipality (72 N.J.L. 285 1905, 286). combined with other valid zoning purposes; Further, the court specifically refuted the validity finally, many courts have accepted aesthetic regulations as a legitimate form of land use control on of aesthetic considerations as a basis for such an ordinance: their own merits (Mandelker 2005, 855). review cases, to understand how the opinion of the courts has evolved over time in regards to design review cases.
“No case has been cited, nor are we aware of any case which holds that a man may be deprived of his property because his tastes are